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United States v. Bullcoming

United States District Court, W.D. Oklahoma

October 3, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TOMMY DEAN BULLCOMING, Defendant.

          ORDER

          CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE

         Now before the Court are three motions to suppress evidence, filed through counsel by Defendant Tommy Dean Bullcoming: (1) Defendant's Motion to Suppress Evidence Derived from Illegal Search of Mobile Home (Doc. No. 97), (2) Defendant's Motion to Suppress Evidence Obtained from the Illegal Search of the Lexus RX 300 Vehicle (Doc. No. 98), and (3) Defendant's Motion to Suppress Evidence Derived from Illegal Search and Seizure of Defendant's Black Bag (Doc. No. 99). The government has responded in opposition (Doc. Nos. 104, 105). On September 25, 2019, the Court conducted an evidentiary hearing on the motions. Defendant appeared personally and through counsel, Mark L. Henricksen, Susan M. Otto, and Jeff Byers. The government appeared through Assistant United States Attorneys Arvo Q. Mikkanen and Mark R. Stoneman. The Court heard the testimony of Special Agent Micah Ware of the Bureau of Indian Affairs and Ms. Mia Raya[1] and received government's exhibit 1 and Defendant's exhibits 1 through 32. Upon consideration of the evidence and the parties' arguments, the Court makes its determinations.

         I. Defendant's Motion to Suppress Evidence Derived from the Search of the Mobile Home

         Defendant moves to suppress evidence obtained from the searches of Ms. Linda Zotigh's mobile home, located at 305 S. 9th Street, Hammon, Oklahoma, on Indian land. According to the evidence received at the hearing, the searches occurred on the morning of September 7, 2017, during an arson investigation, and again on September 11, 2017, with the consent of Ms. Zotigh's daughter Mia Raya. Hr'g Tr. (Doc. No. 136) 56:16-18, 103:1-15. Agent Ware entered the mobile home again with the consent of Mia Raya on or around September 13, 2017, to retrieve a knife. Hr'g Tr. 110:14-25, 111:1-14.

         By his motion, Defendant challenges the searches of the mobile home on the ground that Mia Raya did not possess the authority to consent to the searches. See Doc. No. 97, at 4-8. The government submits several arguments in response, including that (1) Defendant lacks standing to challenge the validity of the search because he did not have a reasonable expectation of privacy in the mobile home, (2) Mia Raya's consent was constitutionally sufficient because, as one of Zotigh's children and next of kin, Mia Raya had apparent authority to consent to the search, and (3) the search was justified by exigent circumstances. See Doc. No. 105, at 10-18, 21-23.

         a. Standing

         “Fourth Amendment rights are personal and cannot be claimed vicariously.” United States v. Valdez Hocker, 333 F.3d 1206, 1208 (10th Cir. 2003). Accordingly, “[t]he proponent of a motion to suppress has the burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search.” United States v. Eckhart, 569 F.3d 1263, 1274 (10th Cir. 2009) (internal quotation marks omitted) (quoting United States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000)). To demonstrate that his individual constitutional rights were violated by the warrantless searches of the mobile home, Defendant “must show that he had a subjective expectation of privacy in the premises searched and that society is prepared to recognize that expectation as reasonable.” United States v. Higgins, 282 F.3d 1261, 1270 (10th Cir. 2002) (internal quotation marks omitted).

         While “[t]he text of the [Fourth] Amendment suggests that its protections extend only to people in ‘their' houses, ” the Supreme Court has held that “in some circumstances a person may have a legitimate expectation of privacy in the house of someone else.” Minnesota v. Carter, 525 U.S. 83, 89 (1998). The Tenth Circuit has recognized that, “as a general rule, social guests will have an expectation of privacy in their host's home, ” and that “an ongoing and meaningful connection to [the host's] home as a social guest” may confer “standing to challenge the government's search and seizure of evidence from the . . . residence.” United States v. Rhiger, 315 F.3d 1283, 1286-87 (10th Cir. 2003).

         In this case, the evidence showed that Zotigh was the sole owner of the mobile home. Hr'g Tr. 147:6-14. Zotigh and Defendant had been in a relationship off and on for around two years prior to her death. Defendant stayed with Zotigh in her mobile home during the times they were in a relationship and stayed with family members during the periods of time in which they were not. Hr'g Tr. 104:3-12. Even when Defendant was living with Zotigh, Zotigh did not allow Defendant to stay in her mobile home when she was out of town, and Defendant did not have a permanent key to the mobile home. Hr'g Tr. 28:6-8, 144:16-22, 152:2-5. When Agent Ware asked Defendant for biographical information following his arrest, Defendant identified a P.O. box address. The P.O. box address was also listed as his address on the Cheyenne and Arapahoe tribes' official list of tribal members. Hr'g Tr. 29:18-25, 30:1-13. When Agent Ware asked Defendant where he lived, Defendant responded something to the effect of “here and there, ” rather than Zotigh's address. Hr'g Tr. 30:7-8.

         The evidence further showed that prior to traveling to Arizona on or around August 31, 2017, Zotigh arranged for Defendant to stay with her neighbors Wendell and Chris Johnson. Hr'g Tr. 27:4-25, 28:1-11. While in Arizona, Defendant's relationship with Zotigh “soured” and Zotigh stopped responding to his text messages. Hr'g Tr. 28:23-25, 29:1-12. The evidence showed that when Zotigh arrived back to Hammon, Oklahoma from Arizona, she contacted Wendell Johnson and asked him to tell Defendant to remove his belongings and clothing from her mobile home. Hr'g Tr. 31:19-25, 32:1-12. Agent Ware testified that it was evident from Zotigh's text messages with Defendant and her communications with Wendell Johnson that her relationship with Defendant had terminated. Hr'g Tr. 32:15-18.

         First, Defendant's statements to Agent Ware indicating that he lived “here and there” and did not have a physical address, coupled with Defendant's acquiescence to Zotigh's request that he stay with her neighbors while she was away, substantially undermine Defendant's claim of a subjective expectation of privacy in Zotigh's mobile home at the time of the searches. Even assuming, however, that Defendant did have a subjective expectation of privacy in the mobile home, the Court concludes that this expectation of privacy is not “one that society is prepared to recognize as ‘reasonable.'” Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal quotation marks omitted).

         Though Defendant may have had an “ongoing and meaningful connection to [Zotigh's] home as a social guest” at certain times prior to the searches, Zotigh's termination of their relationship, her refusal to allow Defendant to stay in her mobile home while she was away, and her decision not to give him a permanent key to the mobile home illustrate that Defendant could not claim an objectively reasonable expectation of privacy in Zotigh's mobile home as a social guest at the time the warrantless searches occurred. Rhiger, 315 F.3d at 1287; see, e.g., United States v. Poe, 556 F.3d 1113, 1122-23 (10th Cir. 2009) (finding the defendant had a reasonable expectation of privacy in host's home where defendant had a key and host “never indicated that she did not want [him] in the house or that he was there without permission”); United States v. Thomas, 372 F.3d 1173, 1176 (10th Cir. 2004) (finding defendant could challenge search of aunt and uncle's home when he was there as a social guest with plans to spend the night and “his plans were ‘okay' with his aunt and uncle”); Rhiger, 315 F.3d at 1287 (noting that in Unites States v. Pollard, 215 F.3d 643 (6th Cir. 2000), the Sixth Circuit found the defendant had a reasonable expectation of privacy in friend's home in part because he “was permitted to be in home while owners were absent”); United States v. Castro, 225 Fed.Appx. 755, 758 (10th Cir. 2007) (explaining that the Defendant had been “sent packing after assaulting his girlfriend and thus had no objectively reasonable expectation of privacy remaining in the apartment . . . at the time of the raid”); see also United States v. Battle, 637 F.3d 44, 49 (1st Cir. 2011) (“A defendant lacks a legitimate expectation of privacy in a place . . . when he does not have permission to be present.”); United States v. McCarthy, 77 F.3d 522, 535 (1st Cir. 1996) (finding no legitimate expectation of privacy in items left in host's trailer after the host told the defendant to leave).[2]

         Moreover, Zotigh's status as a host terminated at her death, as she no longer had “ultimate control of the [mobile home]” and could not “admit or exclude [guests] from the house as [she] prefer[red].” Minnesota v. Olson, 495 U.S. 91, 99 (1990). Because a social guest must have the “permission of his host, ” any expectation of privacy Defendant may have claimed in the mobile home as Zotigh's social guest would no longer be reasonable or legitimate after her death, at the time the warrantless searches of the mobile home took place. Id.

         b. Third- ...


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